Who controls public streets?

H2153, sponsored by Rep. Nancy Barto, R-Phoenix, seeks to retain control of public streets under legitimately recognized local governments, the towns and cities. The special interests, and misguided supporters claiming the unique right of an unregulated “local voice of the people,” and further claiming fully knowledgeable and freely given consent, have raised a safety issue with respect to parking on narrow streets.

As to safety concerns, which apparently have been ignored during all the years that these private streets have been in existence, there are legal mechanisms by which community members can address their concerns on a case-by-case basis.

First, on an individual basis, upon legitimate petition, a local government can declare any of these streets unsafe, even though a planning board had approved them, and then restrict parking. Second, the HOA can petition to take over the public streets, legitimately, and be responsible for street maintenance, in accordance with state laws.

As to the opposition by the homeowners associations, H2153 would explicitly deny these private governments the authority to usurp civil government powers. While we have been repeatedly told by the special interests that HOAs are not mini-governments nor quasi-governments, but businesses, the real truth is that they function as de facto governments. The one unique characteristic of a de facto civil government lies in its control and regulation of the people within a territory. It’s that simple.

HOA supporters turn the Constitution on its head by holding that any private agreement to govern a territory, and a subdivision or condo qualifies as a territory, is supreme over the Constitution because the 14th Amendment does not apply to private entities, and that this agreement is sacrosanct and untouchable by the police powers of the state. The HOA, however, is allowed to alter this agreement without the homeowner’s consent. Under this agreement, the consent to be governed and the surrender of constitutional rights and other privileges and immunities of the state are upheld by a mockery of justice and a perversion of democratic principles.

In essence, the HOA functions as an unrecognized, independent government, a principality indeed, within the state of Arizona and within the territorial boundaries of the municipality. The existence of these separate forms of political government with non-delegated authority and powers to act in the place of constitutional government has created a New America. This New America repudiates the once supreme U.S. Constitution with all its protections of individual rights and freedoms. And that cannot be allowed to continue.

Rejecting H2153 would invite invasion by the HOA into the sovereign territory of the Arizona. It would be recognition of a non-delegated constitutional power’s right to govern the people within this state.